Crime Victims Need ‘Restorative Justice’ Rights: Paper

Crime victims should be afforded a legal right to restorative justice, argues Saint Louis University Law Professor Lynn S. Branham in a paper published in the Denver Law Review.

Enshrined guarantees that they will receive all information pertaining to the perpetrator of an offense against them, and have a role in determining what the perpetrator needs to do to “right the wrong” to the victim — among the principles of restorative justice—are critical to making victims feel their voices are heard, Branham wrote.

But most jurisdictions have not bothered to make this possible, he added.

“Despite the steps that have been taken to accord victim-survivors legal rights, they still largely remain on the sidelines, only watching the progression of a case and awaiting its disposition,” Branham wrote.

“While they may be allowed to tender their views at certain junctures of a criminal case, such as through victim impact statements at a sentencing hearing, they have no decision-making authority, even on issues that pertain directly to them.”

Branham argues that prioritizing restitution — the criminal justice system’s “modus operandi” — at the expense of victims’ other needs is unproductive. A victim might desire personal closure or mental health treatment for the responsible party, for instance — goals that restorative justice is uniquely situated to help achieve.

Developed in the 1970s, restorative justice typically encompasses a conference in which a trained facilitator fosters dialogue between a victim and the responsible party about the implications of a crime and the steps the responsible party must take to remedy those implications.

Close family members, friends, and supporters of the victim and responsible party also participate in this facilitated exchange.

“Numerous studies have determined that victim-survivors participating in restorative justice processes are highly satisfied with those processes,” Branham writes.

“Additionally, researchers have found that victim-survivors participating in restorative justice processes are more satisfied with the criminal justice system than victim-survivors whose cases are processed through the system in the traditional way.”

Citing studies that demonstrate the effectiveness of restorative justice as well as victims’ aversion to “adversarial” modes of justice, Branham argues that lawmakers must make access to restorative justice a legal right, which would eliminate the current patchwork-like reality, in which the personal preferences of government officials dictate whether or not restorative justice is incorporated into criminal justice systems.

This right, explains Branham, should be voluntary, since “the core requirement of restorative justice [is] that participation be voluntary.”

In addition, screenings that occur in advance of restorative justice processes may further curtail victims’ access to restorative justice by excluding, for instance, responsible parties who committed a crime but denied wrongdoing.

Regardless of whether or not a victim chooses not to engage in restorative justice or a responsible party denied wrongdoing, Branham argues that the practice must be embedded in the law.

“If a victim right to restorative justice is embedded in the law, as called for in this article, victim-survivors will be able to decide whether they want to participate in a restorative dialogue with the person who harmed them,” she writes.

“That determination will no longer be made by others. Not by legislators. Not by criminal justice officials. Not even by those who advocate for victims’ rights. The decision will be made by victim-survivors. As it should be.”

Read the full paper here.

This summary was prepared by TCR Justice Reporting intern Eva Herscowitz.